State v. Miles

• Decision Date: 09 December 1913
• Citation: 161 S.W. 766,253 Mo. 427
• Parties: STATE v. MILES.
• Court: Missouri Supreme Court

161 S.W. 766

253 Mo. 427

STATE v. MILES.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. CRIMINAL LAW (§ 1052) — QUESTIONS REVIEWABLE — EXCEPTIONS.

Where no exception was taken to the overruling of a motion for a continuance, the point is not reviewable on appeal, though the motion, with a recital that it was overruled, was set forth in the bill of exceptions.

2. CRIMINAL LAW (§ 676) — NUMBER OF WITNESSES — GENERAL REPUTATION — DISCRETION OF COURT.

The general reputation of a witness is a collateral issue, and the trial court has a wide discretion in limiting the number of witnesses who may testify on the issue.

3. CRIMINAL LAW (§ 676) — NUMBER OF WITNESSES — GENERAL REPUTATION — DISCRETION OF COURT.

Where accused produced six witnesses, who testified that the general reputation of a state's witness for truth and veracity was bad, and the state, in rebuttal, used three witnesses, who testified that his general reputation was good, the refusal to allow accused to present three additional witnesses to testify further on the question was not an abuse of discretion.

4. HOMICIDE (§ 300) — EVIDENCE — SELF-DEFENSE — INSTRUCTIONS.

Where accused and decedent quarreled over money matters, and decedent raised one of his hands, motioning toward accused, asking him to leave, whereupon accused drew his revolver, and decedent then said that accused could not scare him, and accused shot decedent three times, causing his death in about 15 minutes, and there was evidence that accused had threatened decedent, and the court charged in submitting self-defense that it was not necessary that the danger should have been actual, but that accused must have believed and have had reasonable cause to believe that decedent was about to take his life or do him some great bodily harm, and, in determining whether accused had reasonable cause to so believe, all the facts should be considered, the refusal to charge that, when a person has reasonable ground to apprehend that some one is about to do him great bodily harm, he may act on appearances, was not erroneous, as the charge given sufficiently declared the law in view of the evidence.

5. HOMICIDE (§ 300) — EVIDENCE — INSTRUCTIONS.

Where, on a trial for murder, the evidence showed that accused shot decedent three times but there was no evidence that decedent was advancing toward accused after the first and before the last shot, an instruction that if accused shot to prevent decedent from killing him, he had a right to shoot and to keep on shooting until the danger or apparent danger had passed, was properly refused for want of evidence on which to base it.

6. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REFUSAL OF INSTRUCTIONS COVERED BY CHARGE GIVEN.

It is not error to refuse a requested charge fully and fairly covered by the instructions given.

7. HOMICIDE (§ 300) — EVIDENCE — INSTRUCTIONS.

Where the evidence showed that decedent had been drinking heavily for some time, and had threatened accused, and had been convicted of disturbing the peace, an instruction that, in law, it was the same offense to kill a bad man as to kill a good one, and, though a jury might believe that decedent when intoxicated was a bad man, that fact alone did not justify accused, was not erroneous.

8. HOMICIDE (§ 254) — EVIDENCE — SUFFICIENCY.

Evidence held to sustain a conviction of murder in the second degree.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

James E. Miles was convicted of murder in the second degree, and he appeals. Affirmed.

Upon an information charging murder in the first degree, defendant was tried in the circuit court of Christian county, Mo., resulting in his being convicted of murder in the second degree, and his punishment being assessed at 10 years in the penitentiary. The case originated in Taney county, Mo., but was removed by change of venue to the circuit court of Christian county, Mo. Defendant, by proper steps, appeals from the judgment of said circuit court.

The state's evidence tends to prove the following facts: Defendant shot and killed one Enos Rush, at about 5 o'clock p. m., January 4, 1912, at Branson, Taney county, Mo., where both the defendant and the deceased lived. The shooting occurred in the grocery store and meat market of M. L. Heflin. Up until about a week prior to the shooting, Rush, the deceased, had been working for said Heflin in the meat market, but had been drinking for about a week, and had quit the employment. About an hour before the shooting, deceased went into Heflin's store and again applied for his old position, and, upon promising to cease his drinking, was again employed, his work to begin on the following morning. About 5 p. m., defendant came to the door of Heflin's grocery store and called to Rush, saying: "I want to speak to you." Thereupon deceased went out of the store; and in about 10 or 15 minutes deceased and defendant came back into the store. Deceased went behind the counter on the south side of the store and up to a drawer, behind the counter, where envelopes, stationery, and waybills were kept. He pulled out the drawer and closed it again, and walked back, in the direction that he had entered, to an opening between the ends of the two counters. Deceased had his hands in his pockets and leaned back against the shelving on the side of the store. Defendant then spoke to deceased about some money, which he claimed the deceased owed him, and deceased replied that he would never pay it. At this point, Mr. Heflin asked defendant to leave and not cause any trouble, and deceased raised one of his hands, motioning toward defendant, saying: "Go on off, we don't want no trouble in here. I will never pay it." Thereupon defendant drew his revolver, and deceased said: "You can't bluff me," or "You can't scare me." "I am not afraid of you or afraid of your gun. You can't bluff me." Defendant said: "I can't, Ha," and thereupon shot the deceased three times; one shot entering the body a short distance above the heart; another shot, a short distance below the heart; and then the defendant, taking one step toward the door, shot the third time, this last shot striking the deceased in the arm. Deceased died in about 15 minutes, as a result of the bullet wounds. Defendant was about five feet from the deceased at the time of shooting. Mr. Heflin and his wife and a Mr. Carey were eyewitnesses to the shooting. Mr. Heflin further testified that he was about two and one-half feet from deceased, and about six feet from defendant, at the time of the shooting, and that deceased made no attempt to use any weapon at the time he was shot, and that deceased was unarmed at that time; that deceased wore an overcoat and had one hand in his overcoat pocket and was leaning back against the shelving at the time he was shot; that a person in front of the counter could not see the drawer which deceased had manipulated just before the shooting; that there was no gun in the drawer at the time. About two days before the shooting, Mr. Heflin had taken a revolver, which was used about the meat market, for the purpose of killing cattle, and hidden the same, in a sack of nuts, about five feet from the place where deceased was shot; that, a few days before, the deceased had taken the revolver from the place where it was formerly kept, and was in the act of going across the street to get some cartridges when he was arrested for disturbing the peace; and, on the day of the shooting, deceased plead guilty, in the justice court, to the above charge, and paid a fine, a part of which fine Mr. Heflin had paid. Heflin testified that he hid the gun, in the sack of nuts so that deceased could not get it and Heflin be called upon to help pay another fine. The pistol was found in the sack of nuts after the shooting. Mrs. Heflin testified that, after deceased opened the drawer and came back to the opening between the counters, deceased and defendant began quarreling about some money that one owed the other, and that the deceased, in a loud tone, said to the defendant: "You get out of here, sir." That thereupon defendant drew his pistol, and deceased said, "I am not afraid of you; I am not afraid of your gun;" and thereupon defendant shot deceased, and she became frightened and ran out the back door of the store, and did not see what occurred after the first shot. J. W. Bennett testified that he was in Heflin's store about 40 minutes before the shooting, and heard a conversation between the defendant and Andy Eversole, in which Eversole told defendant that deceased was going to have defendant "pulled for bootlegging whisky," and that defendant started out the door and said: "I will whip that s____ of a b____ for that." John Humphries, a groceryman, testified that about a week before the killing, defendant told him he would "whip the s____ of a b____ when his hand got well," because Rush had had him indicted for selling whisky. George Berry testified that, about 30 minutes before the shooting, defendant, with a pistol in his hand, was in a nearby barber shop, and said that, if Rush...